By Derf Johnson
After almost a decade of advocacy by our members, supporters, and partners, we’ve achieved an incredibly important milestone in the fight to protect the Smith River from a poorly planned copper mine. This past April, a Montana District Court judge ruled that the permit issued by the Montana Department of Environmental Quality (DEQ) was “arbitrary, capricious and unlawful.” This ruling will significantly affect the viability of the Smith River mine, because without a permit there can be no mining. Of course, the fight is not over. The judge’s ruling is almost certainly going to be appealed, and Sandfire (the company proposing to mine in the Smith headwaters) may also consider re-applying to DEQ for an amendment or another permit entirely. However, it’s worth celebrating this milestone, because the wind is now at our backs and permanently protecting the Smith is one step closer to reality.
The judge ruled that DEQ failed to justify a number of aspects of the permit, including the efficacy and management of the tailings storage facility, the structural and safety considerations in the tailings storage facility, and alternative storage techniques for the extremely acidic tailings. DEQ did not adequately explain or address these failures.
This victory could not have been possible without you – our members and supporters. Every time a public hearing was held, you showed up (big time). Every time a public comment period came around, you submitted important and valuable comments of opposition to the mine and of love for the Smith. Every time we (MEIC and our partners) needed funds to fight in the agencies, the courts, and the legislature, you wrote checks without hesitation. Without a doubt, the public opposition to this mine is steadfast and fierce, and the energy of Montanans (and Americans) who love the Smith has, for now, won the day.
In this campaign, MEIC was joined by a number of other organizations that care deeply about the Smith River, including our long-time partners Earthworks, Trout Unlimited (Montana and National), and American Rivers. Each organization put in the time, effort, and resources to bring us to this point. River guides and their employees also deserve recognition for speaking up about the valuable place the Smith holds in their hearts and in their businesses. Finally, Smith River landowners and water rights users (you know who you are) spoke clearly and articulately about the Smith and the risks the mine posed to their private property and communities.
A special thanks must go to Earthjustice, and specifically to attorneys Jenny Harbine and Ben Scrimshaw, who worked tirelessly to advance our legal claims through the judicial system and ultimately secured the judge’s strong order against the permitting of the mine. Their steadfast attention to detail, the facts, and the law, helped to build our case.
As mentioned, the fight is not over. Most immediately, the judge has requested briefs from all of the parties by early June on the “remedy” that should implement her ruling (i.e., what she should do with the permit now that she has found it to be flawed). We’re actively working through these steps. Additionally, DEQ has already loudly proclaimed that it will appeal the ruling to the Montana Supreme Court, where another legal fight will have to take place. Finally, should the Supreme Court uphold the district court order, Sandfire could potentially apply once again to DEQ for an amended permit. Once again, MEIC and our partners are going to need your help. Mining fights are undoubtedly a marathon, not a sprint, and while we certainly should make time to celebrate, let’s all keep in mind that we need to be ready for the next round.
While Sandfire has been selling Montanans, and residents of Meagher County specifically, on the idea that they are only contemplating a relatively small underground mine with an operating life of 12-14 years, the company has for years been acquiring mining claims and mineral rights in a very extensive area surrounding the project, both on public and private land. If the current permit is approved, it is nearly inevitable that the company would establish the permitted mine and begin the expansion process. One previous executive even boasted that the mine could result in a “50-year mining district” over thousands of additional acres.
In the past, we’ve noted that the mine has acquired mineral rights less than a mile away from the Smith River proper. It now appears that they are interested in potentially expanding to the east of the proposed mine site as well. Such an expansion would seriously threaten the clean water, wildlife, and recreation opportunities of this area by turning it into an industrialized zone. Please note that this map does not show private claims that have been leased or purchased. MEIC has highlighted the Smith River and Sheep Creek in this version of the map. Visit www.meaghercountystewardshipcouncil.org/what-we-do to explore the original version.
This article was published in the June 2022 issue of Down To Earth.
